All about water rights and adjudications

Archive for March, 2012

Does the Catholic Church proclaim a right to access to water as a basic human right?

A papal declaration has appeared to say so. In his 2009 encyclical Caritas in Veritate, Pope Benedict XVI insists that it is “necessary to… [consider] food and access to water as universal rights of all human beings without distinction or discrimination.”

One commentary on the subject remarked, “Perhaps the Vatican’s recent preoccupation with water should come as no surprise. After all, water has always enjoyed a prominent place in Christian spirituality — as in Jewish tradition before it. Water is central to a life in human dignity which the Church seeks to define and defend at the international level though her doctrine on social justice.”

But on March 29, a former pontifical staff member, Kishore Jayabalan, since then director of the Acton Institute’s Rome office, offered a counterpoint. He said:

[T]here are at least two reasons why the “right to water” doesn’t exist: 1) States are neither able nor willing to pay for “free” water, and 2) it would interfere with the property rights of those who, for example, own land with abundant supplies of water. These would seem to be quite understandable, but not insurmountable, concerns for those who care about the common good. There are many ways for necessary goods to be produced, distributed and consumed through a novelty called commerce, the supposed “excess” of which is criticized by the Holy See …

If States are reluctant to recognize the “right to water,” why does the Holy See insist on it so regularly? One likely explanation is that most States and the Holy See have very different understandings of human rights. Does a right fundamentally entail freedom from state coercion or entitlement to a government-provided benefit? Should all human goods and needs, which obviously go beyond basic rights such as “life, liberty and the pursuit of happiness,” be considered human rights? If so, who will protect and provide them, i.e., the State, civil society or individuals? Is accommodation or synthesis possible among these divergent understandings of rights, some of which would limit the scope and reach of governmental (and ecclesiastical) power while others would expand them? More basically, aren’t these notions of rights and government based on fundamentally different understandings of human nature, on which we are unlikely to agree at anything approaching a universal level?

The U.S. conference season is in full swing. There are numerous conference events highlighting a variety of issues that are critical to the US water/wastewater sector including the water-energy nexus, water efficiency, water conservation, deteriorating aging infrastructure and the growing investment needs, improved water resource management, water foot printing, water pricing, etc.

There is one particular new collection of conference programs worth noting. Organized by WestWater Research in partnership with American Water Intelligence, three Summits are scheduled this year and will focus on the important topics of water rights, water trading, and water-related investment options. The mission of these three Summits – to champion the business and investment opportunities being generated by the evolving water crisis that continues to impact parts of the southern central and western regions of the United States.

The three Summit events will specifically bring together industry leaders within the water resource development and investment arena to effectively identify and review creative realistic solutions for addressing water resource challenges in some of the most water-stressed states in the country.

The first event took place in Scottsdale, Arizona and addressed topics such as regional water demands, opportunities for re-use, water usage when it comes to the mining sector and real estate development, etc. Featured speakers included the CEO of Aqua Capital Management, the president of PERC Water, the founder of Stillwater Resources, the managing director/principal of WestWater Research, and a partner/shareholder of Brownstein Hyatt Farber Schreck.

The next installment of the conference series is scheduled to take place in Santa Barbara, California on April 12-13th. Entitled “The Water Resources Investor Event,” the two day Summit program will bring together leading market analysts, investment managers, technology leaders, major water project developers/operators, leading engineering firms, etc. The Summit will focus on upstream water assets, including water trading and water banking. It will also review the challenges of water-intensive industries that are located in California.

Particular topics to be addressed at the upcoming Summit include: future of California’s agricultural water supplies; achieving a sustainable water supply through efficiency and technology; understanding the Water Infrastructure Market; groundwater banking; water supply risks; and water pricing in California.

Speakers for the upcoming California Summit include senior representatives from Veolia Water, AECOM, Southwest Water Company, the Metropolitan Water District of Southern California, Grundfos Water, M3 Capital Partners, and XPV Capital.

Additionally, Ambassador John Bohn who is the former commissioner for the California PUC has been invited to join a panel that will review new and evolving financing options for California water project initiatives. He will be joined by Steve Peace, a former member of the California legislature for twenty years and where he served as the Chairman of the Senate Committee on Energy.

The Rio Grande below Caballo Reservoir has been dry for several months. Anyone working or engaging in recreational activities in or near the Rio Grande in the coming days should be aware of the change in the state of the river. Water will begin moving down through southern New Mexico on Sunday and then into west Texas and Mexico in the coming days.

Reclamation began moving water from Elephant Butte to Caballo Reservoir a few days ago to prepare for the first release from Caballo. The initial release of 300 cubic feet per second on Sunday will increase to about 1,300 cfs by that night in order to more efficiently deliver the water.

Due to low water supplies and what is shaping up to be a lower than average snowpack in all of the basins feeding the Rio Grande, the Elephant Butte Irrigation District in southern New Mexico and El Paso County Water Improvement District #1 in west Texas, and the Republic of Mexico presently have only 20 percent of a full allocation. Plans at this time have El Paso County Water Improvement District #1 and Mexico starting their irrigation season on April 5. Elephant Butte Irrigation District will begin taking its water in May.

The public should be aware that water levels within the Rio Grande channel will fluctuate throughout the irrigation season, particularly with the initial releases. The public should also be aware of fluctuating water levels within the Rio Grande natural channel downstream of Elephant Butte Dam, as well as the lake level at Caballo Reservoir during the irrigation season.

The Bureau of Reclamation on March 28 said that public scoping meetings will be held to prepare an Environmental Impact Statement for the Remanded Biological Opinions on the Coordinated Long-term Operation of the Central Valley Project and State Water Project. A Notice of Intent to prepare the EIS and conduct public scoping meetings was published in the Federal Register on Wednesday, March 28, 2012. This EIS will be developed in accordance with the National Environmental Policy Act.

The U.S. District Court for the Eastern District of California remanded portions of the U.S. Fish and Wildlife Service and National Marine Fisheries Service BOs to their respective agencies. This EIS responds to the District Court’s order that Reclamation analyze and disclose, in accordance with NEPA, the potential impacts of implementing the Reasonable and Prudent Alternatives developed pursuant to the remanded USFWS and NMFS BOs.

Four public scoping meetings to solicit input on issues and alternatives to be addressed in the EIS are scheduled to be held:

The Saskatchewan Watershed Authority is pleased to introduce the new Online Products Portal. The Portal currently allows you to apply and pay online for Temporary Water Rights Licences. New services will be added to the Portal in the near future.

A Temporary Water Rights Licence grants permission to use a specific volume of water for short-term use.

We know our new Online Products Portal will enhance our service to you and we encourage you to use this application process, helping you reduce costs for your business and helping us give you faster decisions on water availability.

When you apply for a Temporary Water Rights Licence, we can provide you an automatic assessment that considers the water demand and the water source. This evaluation will either issue you an approval immediately or, if the proposed water source requires an assessment, refer your application to the appropriate regional office for further review.

This process will also assist the Watershed Authority by improving its information database on water use.

This initiative is part of the Watershed Authority’s Public Service Renewal process, improving our service to clients while simplifying processes and lowering costs for you.

The Idaho Supreme Court on March 22 upheld the Snake River Basin Adjudication Court on a complex case involving Pocatello wells, water rights and questions of diversion.

The court did not, however, reach a decision on a couple of significant issues put to on appeal.

The decision, in City of Pocatello v. State of Idaho, was written by Justice Daniel Eismann and got unanimous support on the court.

The court’s summary said, “This is an appeal from the decision of the district court in the Snake River Basin Adjudication holding: (a) that Pocatello cannot use its wells as alternate points of diversion for its surface water rights; (b) that it can use its interconnected wells as alternate points of diversion for all of the associated water rights on the condition that doing so will not change the priority date and quantity of water that can be pumped from each well; (c) that one groundwater right was properly classified as for an irrigation purpose; and (d) that Pocatello failed to establish earlier priority dates for two of its groundwater rights. We affirm the judgment of the district court.”

The case evolved from the city’s 1990 filing of its water right claims, which it later amended. The case was sent a special master, but disputes involving it continued for a long time.
The court noted in description, “Water for Pocatello’s in-town service area is pumped into an interconnected distribution system from twenty-two wells supplied by twenty-one groundwater rights. The wells were developed at different times and are located throughout the in-town service area. Because the interconnected water distribution system was in operation prior to November 19, 1987, Pocatello contended, pursuant to Idaho Code section 42-1425, that each of these wells had become an alternate point of diversion for each of the twenty-one water rights, which would permit it to withdraw water under its most senior groundwater rights from any well. IDWR recommended that each well in the system could serve as an alternate point of diversion for each of the 21 water rights if the water rights were subject to a condition stating, “To the extent necessary for administration between points of diversion for ground water, and between points of diversion for ground water and hydraulically connected surface sources, ground water was first diverted under this right from Pocatello well [description] in the amount of __ cfs.” IDWR did not recommend that condition for three of Pocatello’s groundwater rights that supplied water to the in-town system (29-2274, 29-2338, and 29-7375) because those rights were subject to administrative transfer No. 5452, which did not include the condition and occurred after 1987.”

On the questions before it:

? Did the District Court Err in Upholding the Condition Attached to Pocatello’s Ground Water Rights?

The Supreme Court said that it did not.

? Did the Department of Water Resources Have the Authority to Recommend the Condition that Was Attached to Pocatello’s Ground Water Rights when It Had Not Done So in Prior Similar Cases?

The Supreme Court declined to address that question.

? Did the District Court Err in Holding that the Condition Applied to Water Rights Acquired Prior to May 26, 1969?

The court did not address this question.
? Did the District Court Err in Holding that Pocatello’s Wells Were Not Alternate Points of Diversion for Its Surface Water Rights?

The court said the SRBA Court did not err.

? Did the District Court Err in Affirming the Special Master’s Findings as to the Priority Dates for Water Rights 29-13558 and 29-13639?

It said the SRBA Court did not err here either.

? Is the State Entitled to an Award of Attorney Fees Pursuant to Idaho Code Section 12-121?

Jason King published a decision today on the most important water rights battle ever decided by any Nevada State Engineer. The ruling could allow for 83,988 acre feet of water to be removed from four valleys in the Great Salt Lake Desert aquifer to send to Las Vegas under a proposal made by the Southern Nevada Water Authority. SNWA had applied for 125,976 acre-feet from these valleys and plans to request more from Snake Valley.

The Goshute Tribe has been defending itself from the threat of this project for nine years, but with little support from the federal government, which has a trust responsibility to protect the tribe’s interests. On its own, the tribe interviewed almost every one of its tribal elders to document cultural uses and sites they consider sacred within its ancestral landscape in preparation for this hearing. The tribe detailed its hunting and gathering areas, massacre sites, historic villages, burial sites, sacred springs, and more as part of this process. This substantive information was presented to the State Engineer during the six week hearing (see cultural map online which is available for media use), but does not appear to have influenced the decision in any meaningful way.

Tribal Chairman Ed Naranjo stated, “I fear Mr. King’s decision today might literally wipe out our tribe. What is most frustrating though, is that millions of people who will be severely impacted by this project, have never even heard of it. Goshute people never damaged the earth, we never messed with the balance, but others are out to destroy us, and seemingly for only one reason, the almighty dollar.”

Additionally, six Goshute witnesses testified and detailed the Goshute’s strong cultural ties to this area and spiritual beliefs about the importance of water. During this testimony, SNWA’s attorney asked the Goshute witness to explain the difference between Goshute spiritual beliefs, and his own childhood belief in the bogeyman. The were numerous protestants arguing against SNWA’s proposal during the hearing, including the LDS Church, Salt Lake, Millard, Juab, and Tooele Counties in Utah, Great Basin Water Network, and the Ely and Duckwater Shoshone Tribes.
The Goshute tribe has 30 days to decide whether to appeal of the State Engineers decision in court.

Vice-Chair of the Goshute Tribal Council, Madeline Greymountain says, “Las Vegas might believe it has hit the jackpot with today’s decision, but the tribe has no intentions of letting this go without more fight. Goshute People are determined to protect the abundant life that exists in Spring Valley. These natural resources are vital to our existence, spiritual balance and well-being. This land is part of our ancestral lineage. It is as important to our people today, as it was to our past, and will be to our future generations. So we must protect it in every way we can.

The funds are part of the U.S. Department of the Interior’s WaterSMART program, a partnership with western states to identify sustainable solutions to existing or projected imbalances between water supply and demand. The total cost of the Washita study is $700,000; federal funding will be matched by $450,000 from the OWRB’s Oklahoma Comprehensive Water Plan.

“The drought of 2011 and its devastating impacts point out how vulnerable we are to the vagaries of Oklahoma weather and it really brings home the importance of establishing reliable water supplies, especially in western Oklahoma. This multi-faceted study of the Upper Washita River Basin will do just that,” says J.D. Strong, OWRB Executive Director.

The comprehensive study will augment an ongoing hydrologic investigation of the Rush Springs aquifer, a prolific source of irrigation in the region, to accurately determine the amount of groundwater available for future appropriation. The study will also focus on development of a surface water allocation model that will evaluate various water management options, including those aimed at protecting the future water supply capabilities of Foss and Ft. Cobb Reservoirs.

“From a broader perspective, the Washita study is consistent with multiple initiatives included in the 2012 Update of the Oklahoma Comprehensive Water Plan. The study will utilize the OCWP’s extensive technical data, it is founded upon an active partnership between the state and regional stakeholders, and it leverages considerable federal resources to address critical water supply and infrastructure needs in west central Oklahoma,” Strong points out.

Experts from the Bureau of Reclamation will directly contribute to the study by identifying the water supply impacts posed by climate variability scenarios as well as formulating options to augment the ability of Foss and Fort Cobb Master Conservancy Districts, both owned and operated by the Bureau of Reclamation, to satisfy the region’s growing water needs. Foss Master Conservancy District serves the local communities of Clinton, New Cordell, Hobart, and Bessie while Ft. Cobb Master Conservancy District provides supply to Anadarko and Chickasha as well as power generation plants operated by Western Farmers Electric Cooperative and Public Service Company of Oklahoma.

According to the 2012 Update of the OCWP, demand for water in the study area is expected to increase 40 percent by 2060. The majority of that demand will be met by the Rush Springs aquifer and surface supplies, predominantly Foss and Ft. Cobb Reservoirs. The OCWP indicates that most of surface water in the Upper Washita is currently permitted, leaving little available for appropriation by current or future users.

Adjudication Judge Eric Wildman on March 22 delivered a set of proposed rules of procedure – Administrative Order 1 – for the adjudication in the Coeur d’Alene-Spokane River Basin Water System.

The rules would be familiar to anyone who followed the rules of the Snake River Basin Adjudication. Nor is it likely to be a surprise to most participants in the Panhandle adjudication.

Wildman noted by way of history that “on September 9, 2011, the Court entered an Order in the above-captioned matter [to] establish a CSRBA Steering Committee. Among other things, the Steering Committee is charged with identifying procedural issues of basin-wide significance in the CSRBA and recommending appropriate mechanisms for the resolution of such issues. Consistent with that charge, it is the Court’s intent that the Steering Committee review the attached Proposed AO1 and deliverate on any procedural issues that are identified therein.”

As Senior Advisor, McCalman will serve as the liaison on intergovernmental initiatives associated with hydropower delivery and be responsible for Reclamation’s overall compliance with Federal Energy Regulatory Commission Mandatory Bulk Electric System Reliability Standards. He will also coordinate implementation of corporate partnership efforts involving Reclamation’s power functions and activities in collaboration with the U.S. Army Corps of Engineers, Bonneville Power Administration, Western Area Power Administration and the Tennessee Valley Authority.

“Kerry brings a wealth of experience from all levels of power operations and management, including working together with Reclamation’s customers, stakeholders and industry,” Connor said today. “His experience will be a great asset as Reclamation supports the Obama Administration’s initiative to generate 80 percent of the nation’s electricity from a diverse set of clean energy sources by 2035.”

Since October 2008, McCalman has served as manager of the Power Resources Office in Denver, Colo., responsible for oversight and policy of Reclamation’s Power Program. McCalman joined Reclamation in 1998, working in power, operations and maintenance management positions in Idaho, Colorado, Montana and Utah. Prior to his tenure with Reclamation, McCalman served as a hydropower manager for the U.S. Army Corps of Engineers in Oklahoma.

Water rights and water wars: They’re not just a western movie any more. As states grow and water supplies don’t the western states continue in their struggles to find enough water to meet the ever growing needs. A favorite Mark Twain quote (it may or may not have actually been his) in the west has been, “Whiskey’s for drinking; water’s for fighting.” Today he could just as easily have been referring to the drought-ridden eastern states where water conflicts are becoming commonplace and eastern water users are looking to the west for ideas on handling an issue that a decade ago they never thought to be addressing. The Water Gates reviews water supplies, uses and rights to use water in all 50 states.242 pages, available from Ridenbaugh Press, $15.95

The Snake River Basin Adjudication is one of the largest water adjudications the United States has ever seen, and it may be the most successful. Here's how it happened, from the pages of the SRBA Digest, for 16 years the independent source on the massive case - advances, slips, false starts and unexpected leaps.